A unanimous Supreme Court ruling against your position is usually a sign that your legal arguments lack merit. But Governor Terry Branstad hasn’t learned that lesson from his administration being on the wrong end of not one, not two, but three unanimous Iowa Supreme Court rulings.

Last week, the court ruled with no dissenting justices that Iowa’s ban on using telemedicine to provide abortion services is unconstitutional. Three of the justices who concurred in the decision are Branstad appointees (Chief Justice Mark Cady and Justices Edward Mansfield and Thomas Waterman). Two of them–Waterman and Mansfield–have demonstrated in previous cases that they are reluctant to substitute their judgment for that of executive branch bodies responsible for rulemaking. Yet Branstad not only rejects the reasoning underlying the telemedicine ruling, but also refuses to accept legal experts’ determination that his administration cannot appeal the decision to the U.S. Supreme Court.  

Branstad mentioned the Iowa Supreme Court’s June 19 decision at his regular weekly press conference on June 22:

“I was very disappointed in the court decision, and we are going to be reading and reviewing and analyzing that and determining what is the best course of action for us to take,” Branstad says.

Branstad says its’ [sic] too early to say if the state will appeal the ruling to the U.S. Supreme Court.

The governor’s disappointment is understandable, since he has always opposed abortion rights and had appointed all of the Iowa Board of Medicine members who adopted the rule banning telemedicine abortions in 2013. In addition, Branstad’s legal counsel Brenna Findley advised the Iowa Board of Medicine that they could immediately accept a petition for rulemaking from anti-abortion advocates, contradicting advice offered by the board’s director of legal affairs as well as its legal counsel from the Attorney General’s Office.

Still, I was surprised to see Branstad float the idea of an appeal. Within hours of the Iowa Supreme Court announcing its decision, David Pitt and Barbara Rodriguez reported for the Associated Press,

Since the decision interprets rights under the Iowa Constitution based on application of U.S. Supreme Court rulings and federal constitutional rights, there is no federal appeal of the ruling, a spokesman for the Iowa Attorney General said.

Ryan Koopmans, a conservative Des Moines-based attorney who blogs about appellate cases, likewise observed,

In a footnote in their appeal brief, Planned Parenthood dropped its US Constitution claim and stated that it was now, on appeal, “rely[ing] solely on the Iowa Constitution.” […]

The Iowa Supreme Court did conclude that the telemed-abortion ban violates the US Constitution (and thus violates the Iowa Constitution), but since there is no federal claim, the US Supreme Court would not have jurisdiction to hear the case. And that may have been the point of dismissing the federal claim.

Branstad respected Koopmans’ legal acumen enough to appoint him to a regional Judicial Nominating Commission. So I figured that once the governor’s staff had caught up with Koopmans’ analysis of the Iowa Supreme Court’s ruling, they would realize there was no path to take the telemedicine case to a higher court.

On June 24, I sought comment from the governor’s office on whether Branstad was still considering an appeal to the U.S. Supreme Court. Communications director Jimmy Centers replied, “The governor is reviewing the [Iowa] Supreme Court’s decision and considering all options.”

What options? Branstad is an attorney himself, so he should know that wishing you could appeal an unfavorable court ruling doesn’t necessarily make it so.

I also asked Centers on Wednesday whether the governor is “concerned about all uses of telemedicine that result in Iowa doctors prescribing medication without having been physically in the same room as the patient.” Centers responded,

After receiving petitions from medical professionals from all across Iowa that raised concerns about the quality of care women were receiving under these webcam procedures, the Iowa Board of Medicine provided a standard of care for webcam abortions. The Iowa Board of Medicine’s action ensured women received the high standard of care that they deserve. The governor believes  – as do the medical professionals from across Iowa that [sic] petitioned the Iowa Board of Medicine – that women undergoing a procedure of this magnitude deserve a high quality of care.

To my follow-up question (“does Governor Branstad consider that Iowans who access other health care services through telemedicine are not receiving high-quality care?”), I got the following answer:

The governor believes – as do the medical professionals from across Iowa that [sic] petitioned the Iowa Board of Medicine – that women undergoing a procedure of this magnitude deserve a high quality of care.

Reality: As the Iowa Supreme Court ruling noted (on pages 5 and 23 through 26), the American College of Obstetricians and Gynecologists (ACOG) “accepts and approves of” Planned Parenthood of the Heartland’s  “protocol as the standard of care to administer these drugs.” Furthermore, “the weight of the record evidence indicates that a pelvic examination prior to administering the mifepristone does not provide any measurable gain in patient safety.” Also, “Studies have shown medical termination of pregnancies can be “provided safely and effectively by nonphysician clinicians,” and that “telemedicine abortions pose no further risk of complications to the woman than medication abortions done with the physician present.”

Reality: Iowa doctors treating patients for a wide range of conditions prescribe many medications through telemedicine. Some of those drugs carry a far greater risk of serious side effects than does mifepristone, used to induce abortions during the early weeks of pregnancy.

If the Iowa Board of Medicine had examined the weight of the medical evidence, rather than siding with activists (mostly not doctors) who oppose a woman’s legal right to an abortion at any stage of pregnancy, they never would have adopted the ban on telemedicine for abortions. As the Iowa Supreme Court decision noted (pages 30 and 31),

Whenever telemedicine occurs, the physician at the remote location does not perform a physical examination of the patient. It is difficult to avoid the conclusion that the Board’s medical concerns about telemedicine are selectively limited to abortion.

Most significantly, as noted above, the Board has adopted a rule that generally approves of the use of telemedicine, recognizing the existence of “technological advances [that] have made it possible for licensees in one location to provide medical care to patients in another location with or without an intervening health care provider.” Iowa Admin. Code r. 653-13.11. The rule authorizes the use of telemedicine in accordance with “evidence-based” guidelines and standards. Id. r. 653-11(2). […] The Board appears to hold abortion to a different medical standard than other procedures.

Any relevant comments are welcome in this thread.

P.S.- I wrote at the top, “A unanimous Supreme Court ruling against your position is usually a sign that your legal arguments lack merit.” I say “usually” because not every Supreme Court decision evaluates the legal merits of each side’s position.

P.P.S.- I haven’t done the research to prove it, but I suspect Branstad may be the only governor in U.S. history to be on the wrong end of at least two unanimous state Supreme Court rulings involving entirely different groups of judges. None of the seven Iowa Supreme Court justices who concurred in a 1992 ruling rejecting Branstad’s attempt to block public employee pay raises were still serving on the court in 2012, when all seven justices invalidated different line-item vetoes by Branstad.